Who Controls the Mahabodhi Temple and Who Should Control it? A Critical Analysis of the Bodh Gaya Temple Act, 1949

Authored by Aditya Tandon and Harsh, second-year law students at Hidayutallah National Law University, Raipur

Mahabodhi Temple, Bodhgaya | Credit: Ayush Kumar

Introduction

Bodh Gaya is considered to be a sacred place for Buddhists. Ironically, the internationally famous Mahabodhi Temple (hereinafter referred to as ‘Temple’) has been under the effective control of Hindus for ages. This sanction for an unacceptable cultural domination has been provided under the Bodh Gaya Temple Act, 1949 (hereinafter referred to as ‘Act’). It violates the provisions of the Indian Constitution, particularly the principles of secularism and fundamental rights as enshrined under Part III of the Constitution. In the backdrop of large-scale protests happening for the past two months, which is the latest episode of the decades old dispute, the authors question the constitutionality of the Act and argue for its repeal or amendment in order to serve justice to the Buddhist community.

Composition of the Committee Under the BGT Act and Constitutional Troubles

Section 3 of the Act provides for the formation of the Bodhgaya Temple Management Committee (hereinafter referred to as ‘Committee’) for the management and control of the Temple. It says that the committee shall consist of eight members, four of whom should be Hindus and the other four Buddhists. It is interesting to note that before 2013, the Act provided that the District Magistrate (hereinafter referred to as ‘DM’) of Gaya who is the ex- officio Chairman of the Committee shall be a Hindu and if the DM is not a Hindu, then the State government would appoint a Hindu DM as the Chairman for the time being DM is a non-Hindu. The proviso to Sub-Section 3 of Section 3 of the Act, which provided for this, was deleted by an amendment in 2013 by the Bihar Legislative Assembly. The preamble of the amendment must be considered as it recognised that Section 3(3) of the Act violated the principles of secularism and thereby removed the mandatory condition that the Chairman had to be a Hindu, even if the DM was a non-Hindu. The authors argue that the reasoning provided in the Preamble of the amendment can be extended to Section 3(2) of the Act as well. Before the 2013 amendment, the committee was numerically dominated by Hindus, and this was mandated by the Act itself. The amendment seeks to remove the mandatory nature of the DM being a Hindu, however, it is not far-fetched to reach the view that most DMs are going to be Hindu, considering the demography of Bihar and India.  This can be substantiated by this list of all DMs of Bodh Gaya from 1949 to 2022.

Another troubling provision is Section 5(3) of the Act, which asserts that any act cannot be challenged merely on the grounds of a vacancy in or any defect in the constitution of the Committee. This implies that the state government might even nominate more Hindu members than what has been mandated by the Act itself, as per their expediency, thereby leaving the Buddhists with no resort left. This is concerning, especially given the fact that according to Section 8 of the Act’s bye-laws, the quorum for any meeting shall be four. A situation where decisions can be taken by just four Hindu members would raise significant concerns about the fairness and representativeness of the decision-making process of the Committee. In addition, the legislators were well informed of the age-old dispute between the Hindus and Buddhists and while taking into consideration this fact, they inserted Section 12 in the Act, which states that any dispute between Hindus and Buddhists in relation to the Temple shall be decided by the state government. The decision of the state government is most likely to be pro-Hindu, considering the vote bank nature of politics and the majority Hindu demography in the region.

The landmark cases of Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India established that pre-constitutional laws do not have a presumption of constitutionality. Given the fact that the Act was enacted in 1949, it does not enjoy the prerogative of presumption of constitutionality. Therefore, the judiciary must scrutinise closely the provisions of the Act for any potential constitutional violations, particularly those of  Article 14.

The Disparate Treatment of Religious Communities

The fact that there is a compulsory inclusion of non-Buddhists in the Committee of a Buddhist place of worship, even without a mandate that if a non-Buddhist is included, he should possess the knowledge of Buddhism, posits a clear violation of not only Article 14 but also of Articles 25 and 26. It is important to note that this compulsory inclusion of the members of another community in the management committee of a place of worship of a community is an anomaly, and no similar law exists for Hindus or for the followers of any other religion in India. In fact, Section 6(2)(ii) of the Shri Sanwaliaji Temple Act, 1992 states that the State Government will nominate three members who have served in the Vaishnava Sampradaya and the Sanwaliaji Temple is dedicated to Lord Vishnu and hence, the Act justifies the nomination of such a member. In addition, Section 6(2) of the Shri Jagannath Temple Act, 1955 prohibits anyone but a Hindu from joining the board of members managing the temple. Other Acts governing temples like the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988, do not specifically debar members of other religions from being a part of the Temple Management Committee, but definitely do not mandate their compulsory inclusion. Thus, there is no reasonable classification based on intelligible differentia for this different and unfair treatment being meted out to the Buddhists as envisaged in the case of State of West Bengal v. Anwar Ali Sarkar.

According to Articles 25(1), 26 (b) and 26 (d), all persons have the freedom to freely profess, propagate and practice their religion and manage the affairs of their own religion and have control over their property. As has been discussed, there are many impediments which have been created by the pro-Hindu provisions of this Act to the Right to Freedom of Religion of the Buddhists.

The Buddhist Identity and the 'Hindu' Umbrella Argument

It can be argued on behalf of the Hindu proponents that the term ‘Hindu’ includes Buddhists as well and there arises no argument against inclusion of non-Buddhist members, by drawing inspirations from Explanation II of Article 25 of the Indian Constitution and Hindu Marriage Act, 1955 which provides that the term ‘Hindu’ includes Buddhists. However, the mandate under Section 3 of the Act for compulsory inclusion of four Buddhist members in the Committee highlights the intention of the legislators to disintegrate Buddhists from the term ‘Hindu’. Otherwise, the Act could have just mentioned that the members of the committee should be eight Hindus. It can be inferred that the intention of the lawmakers was not to include Buddhists under the term ‘Hindu’ in the sense of Article 25.

This can be further substantiated by resorting to Section 12 of the Act, which says that if there exists any dispute between Hindus and Buddhists regarding the manner of use of a temple or temple land, the decision of the State Government shall be final. This implies that the legislators were apprised of the fact that there exists a dispute between the two sects for effective control of the Temple and its management. Moreover, there is a fundamental problem with disputes being settled by the State government, as there is the possibility of pro-Hindu bias for reasons that have been discussed previously. Instead of the disputes being settled by the State government, they could go to an Arbitrator as is provided under Section 23 of the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988.

Statutory Barriers: The Places of Worship Act, 1991

The Places of Worship Act, 1991, as argued, might become an impediment to Buddhists' claim, as in effect, it prohibits the conversion of any religious place of worship after 15th August, 1947. It is important to note that Section 3 of the abovementioned Act uses the term “No person shall convert any place of worship…”. Thus, it prohibits extra-judicial conversion/destruction of a place of worship, similar to what happened in the case of Ram Janmabhoomi in Ayodhya. It is the vagueness of Section 4(1) of the same Act that makes the situation complicated, as it states that “religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day”. However, it is nowhere defined in the law what the term ‘religious character’ means. It is highly unlikely that the Court would hold that the change in composition of a temple committee, that too because of it violating Article 14, would somehow change the “religious character” of a place of worship. The case is not about converting a Hindu temple into a Buddhist temple or vice versa, but about the control and management of a place of worship.

Conclusion

The Act, in its present form, stands in contradiction to the values of secularism, equality, and religious freedom enshrined in the Indian Constitution. By effectively placing the control of a profoundly sacred Buddhist site in the hands of a committee not wholly representative of the Buddhist community, the Act sustains an imbalance that undermines the autonomy of religious minorities. Its provisions conflict with Articles 14, 25, and 26, and reflect outdated legal thinking that no longer aligns with contemporary constitutional standards. Addressing this imbalance is not simply a matter of religious sentiment but a constitutional obligation. In conclusion, the authors believe that the BGT Act should be amended in order to restore ownership and management to the Buddhist community.